The House resumed from February 14 consideration of the motion that Bill C-24, an act to amend the Federal-Provincial Fiscal Arrangements Act and to make consequential amendments to other acts (fiscal equalization payments to the provinces and funding to the territories), be read the third time and passed.

The House resumed from February 14 consideration of the motion that Bill C-32, an act to amend the Department of Foreign Affairs and International Trade Act and to make consequential amendments to other Acts, be read the second time and referred to a committee.

Mr. Speaker, if the House would agree, I would propose that you seek unanimous consent that the members who voted on the previous motion be recorded as having voted on the motion now before the House, with Liberals voting in favour.

the Power of the Queen in Council under section 56 of the Constitution Act, 1867, to disallow Acts of the Parliament of Canada is not compatible with Canada’s status as a Sovereign State, and has therefore fallen into Desuetude;

WHEREAS the Power of the Queen in Council under section 57 of the Constitution Act, 1867, to deny Assent to Bills of the Parliament of Canada is not compatible with Canada’s status as a Sovereign State or with the direct Relationship between the Queen, the Parliament of Canada, and the Queen’s Canadian Ministers that exists under the terms of the Statute of Westminster, 1931, and has therefore fallen into Desuetude;

AND WHEREAS the Power of the Governor General under section 90 of the Constitution Act, 1867, to disallow Acts of the Legislatures of the several Provinces and the power of the Lieutenant Governors of the Provinces to reserve Bills of the legislatures of the several provinces for the signification by the Governor General of the Queen’s Pleasure are powers that are not compatible with the political maturity that has been attained by the Provinces of Canada, and have therefore fallen into Desuetude;

NOW, THEREFORE, the House of Commons resolves that Her Excellency the Governor General be authorized to issue a proclamation under the Great Seal of Canada in accordance with the schedule hereto:

SCHEDULE

AMENDMENT TO THE CONSTITUTION OF CANADA

The Constitution Act, 1867, is amended by deleting section 56.

The Constitution Act, 1867, is amended in section 57 by deleting the following words: “in Council”.

(1) The Constitution Act, 1867, is amended in section 90 by deleting the following words: “the Disallowance of Acts, and the Signification of Pleasure on Bills reserved,”.

2) The Constitution Act, 1867, is amended in section 90 by deleting the following words: “and for a Secretary of State, of One Year for Two Years,”.

This amendment may be cited as the Constitution Amendment, 2005 (Disallowance and Reservation) and a reference to the Constitution Acts, 1867 to 1982, shall be deemed to include a reference to the Constitution Amendment, 2005 (Disallowance and Reservation).

Mr. Speaker, I rise today on the 40th anniversary of the adoption of Canada's maple leaf flag to move a resolution to authorize Her Excellency the Governor General to issue a proclamation to amend the Constitution under section 41 of the Constitution Act, 1982. The amendments that I propose today would drop the final vestiges of colonialism from our Constitution under which Canada is still technically a self-governing British colony rather than a mature and independent state.

This resolution will, moreover, end the antiquated power of the federal cabinet to treat Canada's provinces as if they were self-governing colonies of Ottawa.

The amendments that I am proposing today to the Constitution of Canada will, if adopted by the Parliament of Canada and the legislatures of each of the provinces, have the effect of simultaneously marking Canada's full emergence into national independence and the final accession of Canada's provinces to the status of mature and fully self-governing states with the same formal status and independence that has been enjoyed for many years by the states of Australia and the United States, and by the cantons of Switzerland.

More precisely, the resolution being submitted to the House today would modify three provisions of the Constitution of Canada.

First of all, section 56 of the Constitution Act, 1867, would be deleted. This is an archaic provision which allows the British Cabinet to disallow acts of the Parliament of Canada within two years of their enactment.

Second, section 57 of the Constitution Act, 1867, would be amended to do away with the power of the Governor General to set aside or “reserve” bills enacted by both Houses of Parliament, so that they may not become law until assented to by the British Cabinet.

Finally, section 90 of the Constitution, Act, 1867 would be amended in order to do away with the power of the federal cabinet to disallow acts of the provincial legislatures and to study bills for which royal assent has been reserved for that purpose by the Lieutenant Governor of a province.

The idea of abolishing these powers is nothing new. A series of constitutional reforms 35 years ago, known as the Victoria charter, included a provision aimed at doing away with these powers of disallowance and reservation. That Victoria charter was supported by the Trudeau government and all provincial premiers. It was, however, eventually rejected when Quebec premier Robert Bourassa withdrew his support for reasons that have nothing to do with the powers we are discussing today.

Thirteen years ago, there was another proposal to eliminate these powers of disallowance and reservation in the Charlottetown accord. In the end, the people of Canada rejected that accord, but once again the imposing series of constitutional reforms was endorsed for reasons having nothing to do with those powers.

In recent decades, then, abolition of the powers of disallowance and reservation has been raised by the Government of Canada on two occasions. Each time all provincial premiers were unanimous in their approval. Then, each time, it ended up out of the constitutional program because it was part of an ambitious series of reforms that could not be given universal assent.

It is in recognition of this historical fact that I propose with the resolution before the House today to return to the pattern of constitutional debate which prevailed in Canada prior to the omnibus packages at Meech Lake, Charlottetown and Victoria. Resolution M-194 and the amendments that it proposes will stand or fall on their own merits, and not as part of a larger constitutional package.

This is the way constitutional amendments are done in the world's other great federations: in Australia, Switzerland and the United States. In these countries each potential amendment is considered on its own merits rather than as part of a packaged deal. Horse-trading plays no role in the ratification process and as a result the process of amending the Constitution is characterized by a distinct absence of the threats of national catastrophe that have been all too common in Canadian constitutional debates.

It is in the same spirit of modesty and reserve that minimalist language has been used in drafting the amendments under consideration today. The amendments have been drafted to strip away as few words as possible from the existing text of sections 56, 57 and 90 of the Constitution Act, 1867, and no words at all have been added to the Constitution, thus preserving untouched key institutions of Canadian life such as the Governor General and the Monarchy.

The two prior attempts in 1970 and 1992 at amending these sections have been somewhat more ambitious. The Charlottetown accord, for example, rewrites section 90 using gender neutral language, but the goal this time around is to make no changes at all to the Constitution except those that are absolutely unavoidable.

It may seem strange to Canadians that our Constitution could ever have been written to contain provisions making this country a self-governing colony rather than a sovereign state, and to seriously compromise the independence of our provinces. It is certainly true that none of the other three federations that I have mentioned gives the central government powers of disallowance over the laws of its states or cantons. But a generous regard for the wisdom of the Fathers of Confederation causes me to observe that the world of 1864 and 1865 in which they drafted and debated this country's Constitution was a much different place than it is today.

In the mid-1860s democracy and liberty worldwide were much more tenuous than they are today. The most egregious abuses of human liberty, including human slavery, were widespread. Democracy and the rights and freedoms which were the birthright of British subjects seemed to be very delicate blossoms indeed. When the Fathers of Confederation met in Quebec City and London to negotiate our Constitution, there was only a single stable democratic state in the entire world, and that was the United Kingdom.

There was at that time no Supreme Court of Canada, no Charter of Rights and no united conventions on human rights. Slavery had been abolished in the British colonies only 30 years earlier over considerable local opposition, and such recent developments as the creation of a vast new republic on the North American continent dedicated to the preservation and expansion of slavery made it reasonable to presume that basic liberties would require extraordinary protections, administered directly by the imperial government in London.

Thus, there was widespread agreement at the time that the rights of Canadians could be best guaranteed by granting the government in London the right to strike down Canadian laws, and by giving the new government in Ottawa the power to do the same with provincial laws.

As well, federalism itself was a new experiment within the British Empire. In the absence of a clearly delineated court of appeal to rule on jurisdictional disputes between the Dominion and the provinces, a power of disallowance seemed like a practical, if awkward, means of resolving such disputes.

The imperial power of disallowance and reservation over acts and bills of the Parliament of Canada seems to have worked more or less the way it was intended. Only one act of Parliament, the Oaths Act of 1873, was ever disallowed by the British cabinet, and the final occasion on which a Governor General exercised the power of reservation on a Dominion bill was in 1886. After this, the imperial powers gradually faded into disuse and their active use was disavowed by the British Parliament in 1931, by means of the Statute of Westminster.

From the very beginning, however, there were concerns that the federal power of disallowance and reservation over provincial laws were too broad, that unlike the imperial power of disallowance, they would be exercised at the behest of politicians who were active participants, rather than impartial observers, in the Canadian political scene, and that as a result these powers might be used erratically with either a regional bias or a partisan component.

Both these fears turned out to be valid. The federal power of disallowance was used 112 times between 1867 and its final use in 1943: 10 times to overturn acts of the legislatures of maritime provinces, 16 times to overturn acts adopted by the legislatures of Ontario and Quebec and 86 times to overturn acts passed by legislatures in the four western provinces.

There is an almost exact inverse ratio between the population and political weight of the province in question and the likelihood that its laws would be overturned by the federal cabinet. Moreover, the greater the partisan distinction between the government in Ottawa at any given time and the party in power in the province, the greater the possibility that the laws of that province would be challenged. Hence, the laws of British Columbia were a favourite target when B.C. had a non-partisan government prior to 1900.

The final occasion on which disallowance was seriously considered by a government in Ottawa was in 1945 when the Liberal government of Mackenzie King was only prevented from overturning the entire legislative agenda of Saskatchewan's new CCF government by an aggressive petition and letter-writing campaign coordinated by Premier Tommy Douglas, who had learned his lesson about how to fight back while watching the federal government annul one statute after another next door in Alberta between 1937 and 1943.

The most striking example of the willingness of federal governments to act arbitrarily and inconsistently came in 1937 when the federal minister of justice, Ernest Lapointe, acted promptly to strike down a series of Alberta statutes after refusing to disallow Quebec's notorious Padlock Law, under which the government of Premier Maurice Duplessis had given itself draconian powers to silence its opponents.

This double standard prompted Eugene Forsey to write the following in the June 1938 edition of The Canadian Forum , “It took less than one day's consideration for the Minister to recommend disallowance of the Alberta Acts, without any petition from anyone, and just one day for the government to offer a reference of the same Acts to the Supreme Court. In the case of the Padlock Act, nearly fourteen months have elapsed since the Act was assented to...more than eight months since the first request for disallowance; nearly four months since the first formal petition, six weeks since the hearing of counsel in support of the petition”.

If the episode is so shocking, it may be due to the following reason: less than one year after these events, this legislation in both Quebec and Alberta was struck down by the Supreme Court of Canada, which declared it to be ultra vires , meaning outside the legal jurisdiction accorded the provincial legislatures by the Canadian Constitution.

Canada had matured a great deal since 1867 and had established a Supreme Court with competent and enlightened judges to rule on such disputes over jurisdiction, which corresponded exactly to the demands of the provincial premiers at the Interprovincial Conference in 1887, in place of the federal powers of disallowance and reservation. It was clear from 1940 on that disputes over jurisdiction could be resolved without the power of disallowance.

Despite this, even if the federal government had a terrible record when it came to defending civil liberties against abuses by provincial government, there was always a valid reason to preserve the powers of disallowance and reservation as the means with which to strike down any provincial legislation violating fundamental human rights.

After the United Nations adopted the Universal Declaration of Human Rights in 1948, it was suggested that the power to revoke be used to strike down any provincial legislation that would contravene this fundamental legislation.

As late as 1960 it was suggested the federal government should consider using the power of disallowance to strike down any provincial laws that violated John Diefenbaker's new Bill of Rights, thereby unilaterally imposing a sort of national standard in human rights upon the provinces, even though the Bill of Rights was a federal law that placed no restrictions on provincial actions, but the 1960s were an era of change.

In 1965 Pierre Trudeau circulated a paper in which he made the following proposal, “A Bill of Rights could be incorporated into the constitution, to limit the powers that legal authorities have over human rights in Canada. In addition to protecting traditional political and social rights, such a bill would specifically put the French and English languages on an equal basis before the law. The protection of basic rights having thus been ensured, there would be no danger in reducing the central government's predominance in certain areas (for example, by abolishing the right of reservation and disallowance)...”

It was this proposal that was incorporated into the Victoria charter five years later, and that the Trudeau government attempted once more in 1978 with its constitutional amendment bill. It was really only by oversight that the package of amendments that were enacted in 1982 did not include the termination of these powers, which now served no useful purpose at all.

The inclusion of the powers of disallowance and reservation in the Charlottetown accord in 1992 was regarded as a matter of constitutional housekeeping and was completely non-controversial. Even the Reform Party, which had strongly opposed the Charlottetown accord, shortly thereafter added the removal of the powers of disallowance and reservation to its policy statement.

There is still a lively debate in Canadian academic circles as to whether the powers of disallowance and reservation are now dead from disuse or merely dormant. If the former is true, then on today of all days we should recognize that our Constitution is as important a symbol as our flag and dispense with these tokens of our colonial past. If it is the latter which is true, then these remain dangerous powers which are opposed by all shades of respectable opinion and they should be done away with.

Canada is as proud and independent a country as any in the world and Canada's provinces are as mature as any state anywhere. Let us make our Constitution reflect those facts.

Mr. Speaker, I admire my colleague for taking this on and it is fitting since today is the anniversary of the first flight of our Canadian flag. Most of us in our private member's bills hit some little issue somewhere. He said he would propose a motion to actually amend our Constitution and so he is a big thinker.

I would like to express to him though some concerns that I have on a broader scale, and that is the fact that democracy really only works if there are checks and balances. Obviously, this one, having fallen into disuse, and we recognize that our sovereign, the Queen, and jolly old England probably do not have an active role anymore in determining what becomes law in this country.

At the same time though we have a deterioration of that democratic accountability in our own country. The example that came to my mind was the vote that carried quite handily here in the House of Commons in June 1999 in which we agreed that the government would not change the definition of marriage. Yet, in subsequent years, in the short five or six years, we have seen both the courts and the government ignore that vote of Parliament.

I do not know if it is fair to say that they were in contempt of Parliament, but they certainly did make decisions. They violated a vote of Parliament, so there is that accountability factor. On the other hand, what my colleague is proposing to do would not have in any way affected that, at least I do not think so.

I am inclined right now to support the motion and I encourage him. I hope that the members opposite are going to think likewise. I have an idea that the Liberals on command will vote against this because of some reason that they will conjure up in their minds. I would like the member's comments on that.

Mr. Speaker, I hope that Liberal members will not vote against this. I have a number of reasons to hope that.

One is the fact that prominent Liberals have in the past been very supportive of this. A number of members of the current Liberal caucus were here in 1992 and therefore voted in favour of the Charlottetown accord which included among other things, a removal of the power of disallowance and reservation and a number of prominent Liberals, not the least of them was Pierre Elliott Trudeau, were strongly in favour of getting rid of these powers.

I think that members of all parties have a history of being supportive of this and we should see a consensus on this issue.

Paul MacKlinLiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, the motion that is put forward today by the hon. member for Lanark—Frontenac—Lennox and Addington for the repeal of the constitutional disallowance and reservation powers deals with a matter that, to the best of my knowledge at least, has not been much of a concern or priority for anyone recently.

However, it is a subject that has often been formally, or informally, raised at federal-provincial constitutional reform discussions going back over 100 years. In that sense, it remains a relevant topic for consideration at the appropriate time and in the appropriate context.

The Minister of Justice and Attorney General of Canada does not support this motion for a number of reasons. I hope the sponsoring member and all members of the House who have an interest in the continuing of Canadian federalism, as opposed to dismantling of federalism as we know it, will find these reasons compelling.

Indeed, I dare to hope that after hearing these reasons, the hon. member might consider withdrawing his motion. If not, then I hope I can convince our colleagues here in the House, or at least those who believe in our federal system, to vote against it.

To begin with, I think it is safe to say that in modern times no federal government would ever consider exercising these powers, except perhaps in the most extraordinary of circumstances.

As I indicated a moment ago, these powers and their possible repeal or, for that matter, the creation of limitations on these powers or the examination of other alternatives remain a relevant topic for consideration when the time and forum are right. At the moment, there does not appear to be a need for fixing this provision and no observable consensus that we should be dealing with this at this time.

Repeal of these powers might be considered in the context of the development of an integrated and coherent set of proposals for constitutional reform. In such a context, the powers of disallowance and reservation could be considered amongst others dealing with modernizing or generally improving the federal-provincial balance of powers and related matters.

It has not been a part of our constitutional reform tradition up until now for the federal or provincial government to put forward constitutional motions unilaterally without some prior discussion and without some give and take in developing a comprehensive proposal. From the federal perspective there are good reasons for this based primarily on the federal government's concern that it guard and exercise its powers in the interests of all Canadians from a national perspective.

Social, economic, political and other related developments of modern life are often complex and interconnected. These developments have an impact on the constitutional vision that guides our political leaders when proposals are put forward, usually after much consideration, for the constitutional amendment. In addition, progress towards constitutional peace, if not always change, often involves informal understandings in the context of cooperative and practical federalism.

The federal government has never been prepared to acquiesce in the proposed repeal of these powers except in the context of a comprehensive discussion where give and take on all sides leads to a constitutional agreement acceptable to a broad range of Canadians throughout the regions of the country.

Pending such a broader constitutional deal, these powers, unexercised for decades for good political reasons, are hardly a high profile and pressing irritant that require priority repeal, as would eventually follow from the adoption of this motion.

The power of disallowance, which had long been in decline, has not been used since 1942...It is the very breadth of these powers that protects against their frequent or inappropriate use. It was not the courts but political forces that dictated their near demise. They are, as was said of the power of disallowance, “delicate” and “difficult” powers to exercise and “will always be considered a harsh exercise of power, unless in cases of great and manifest necessity--

Members can also see in Severn v. The Queen, 1878, 2 S.C.R. 70, through Chief Justice Richards at page 96 and Justice Fournier at page 131:

Their inappropriate use will always raise grave political issues, issues that the provincial authorities and the citizenry would be quick to raise. In a word, protection against abuse of these draconian powers is left to the inchoate but very real and effective political forces that undergird federalism.

If we cast our minds back to the mid-1980s and the five conditions put forth by Quebec's then Premier Bourassa for Quebec's acceptance of the Constitution Act in 1982, the repeal of these powers was not one of them. The resulting discussions that led to the Meech Lake accord also did not generate a call for the repeal of these powers.

In the early 1990s an even more ambitious attempt at constitutional reform led to the Charlottetown accord. In that context, such a proposal was balanced by others that maintained and strengthened the equilibrium of the federation and the balance between federal and provincial powers, as well as the protection of the fundamental rights and freedoms of Canadian citizens.

It would be inappropriate and, indeed, unwise for the federal government to support the piecemeal repeal of the powers of disallowance and reservation at the present time without any quid prop quo from the provinces with a view to strengthening the federation and enhancing the protection of the rights and interests of Canadians everywhere.

I see no more logic in a motion to deal with these powers independently than for any other individual item that might appeal to a particular member, constituency or lobby group. In a nutshell, the federal government does not support and does not recommend that we should unilaterally give up any federal powers even if their existence is mainly, if not entirely, historical and theoretical.

I would also note that unlike a bill, the details and technicalities of which would be examined in committee, the adoption of a motion at this time would bar technical analysis and possible improvements.

Constitutional amendments to our federal structure are inherently significant and important, and proposals for such amendments should not be embarked upon in a hasty, ill-timed and ill-considered way. I suggest to hon. members that a motion fast-tracking a constitutional amendment should be contrary to every instinct that we have as legislators. Therefore I would encourage all members not to support the motion.

Mr. Speaker, I listened very closely to the extremely eloquent speech by my learned colleague from Lanark—Frontenac—Lennox and Addington, who gave a historical overview of the perverse effects of the powers of disallowance and reservation which, in passing, have not been used for many decades, which indicates to most constitutionalists that these powers have literally fallen out of use.

However, our colleague from Lanark—Frontenac—Lennox and Addington proposes to eliminate or strike sections 56, 57 and certain provisions in section 90 of the Constitution Act, 1867, so as to make the Constitution of Canada compatible with Canada's status as a sovereign nation.

First, we must say that it is commendable to want to bring a country's constitution in line with its political reality. However, the Bloc Québécois will not be supporting this motion. I will explain shortly the reasons why we will not be doing so.

Obviously, the reasons we will not be supporting this motion are not the same ones mentioned just now by the parliamentary secretary. It is not because I believe in the virtues of Canadian federalism that I shall oppose this motion. Moreover, I thought perhaps that I heard in the parliamentary secretary's opening remarks that there might be a hidden agenda in the government's desire to maintain these powers of disallowance and reservation.

I think I can quote the parliamentary secretary. Of course, I cannot quote his exact words, but he said something of this sort, “we might want to use them in extraordinary circumstances.” Beyond the federalist profession of the faith by the parliamentary secretary who says that this is not the right way to go about constitutional reform, I believe I can detect in his remarks that fundamentally, deep in the backs of the minds of the federal government strategists, there are potentially devious intentions with respect to maintaining these powers of disallowance and reservation.

That said, the question we are asking on our side is this: why bother now with a partial, not to say purely cosmetic, amendment of a power that has fallen out of use because it has not been invoked in many decades? Another question came to mind: why not eliminate section 55 of the Constitution, which is in some ways a corollary to sections 56 and 57? Of course, wanting to understand the logic of our colleague from Lanark—Frontenac—Lennox and Addington, we checked with his office and this is the answer we got “Yes, of course, we want to make certain that the Queen cannot reverse a decision made by the Governor General in giving royal assent to a bill, but we do not want to strike out section 55 and thereby eliminate the link between Canada and the monarchy.” And there, there is a contradiction. If, for motives such as preservation or proclamation of Canada's sovereignty, they want to eliminate certain provisions in Canada's Constitution, it is surprising that they want to preserve section 55 because they want to maintain Canada's links with the monarchy.

That leads us to think that there appears to be a purely rhetorical use of the concept of sovereignty as an argument to justify a purely cosmetic constitutional amendment, namely, eliminating the powers of disallowance and reservation which are currently enshrined in the Constitution of Canada.

For the Bloc Québécois sovereignty is not just a purely rhetorical argument. In that sense, it is absolutely impossible for us to support this motion put forward by the member for Lanark—Frontenac—Lennox and Addington.

It is even more embarrassing to us that the constitution of a country is the fundamental pact governing that country. We are simply surprised, as Quebeckers, that this House focusses on cosmetic changes to the Constitution Act, 1867, patriated in 1982, while it does not seem at all concerned by the fact that Quebec is still excluded from the 1982 constitutional agreement. Not only is this a great aberration, but no one anywhere in Canada, and especially in this House, seems to care.

Here they want us to support part of what was the now defunct Charlottetown Accord. I remind my hon. colleague that we, sovereignists, virulently opposed the Charlottetown Accord and so did most Quebeckers. It did not do enough for Quebec. And now they would have us accept just a small part of the defunct Charlottetown Accord? It is absolutely out of the question for the Bloc Québécois to have anything to do with a piecemeal constitutional reform, albeit a purely cosmetic reform, when fundamental aberrations continue to exist.

The Bloc Québécois obviously opposes such an amendment to the Constitution Act of 1982, which Quebec has not ratified. I listened to the hon. member for Lanark—Frontenac—Lennox and Addington telling the House how strongly Pierre Elliot Trudeau was in favour of eliminating the power of disallowance and reservation. If he was all that favourable, he might have eliminated these provisions in 1982, when he imposed patriation of the Constitution. But he did not. This argument is purely rhetorical, once again.

If this House wants to bring the Constitution into line with the political reality of this country, Canada, it must do so with the seriousness and rigour it deserves. For us, it is not serious or rigorous to put MPs from the Bloc Québécois through minor, partial, cosmetic changes to this Constitution rejected by Quebec.

If we are to talk about the Constitution in this House, first and foremost, it must be recognized that Quebec is a nation. Need I remind the House that on September 23, 2003, this House rejected a motion to recognize Quebec as a nation. My hon. colleague from Lanark—Frontenac—Lennox and Addington was very pleased to vote against that motion that would have recognized Quebec as a nation.

I also want to remind the House that many of the provinces represented today by the Conservative Party members voted heavily against the Charlottetown Accord, which recognized Quebec's status not as a nation, but simply as a distinct society. It was too much to much to ask Canada to give Quebec status as a distinct society. We will not even be surprised by the fact that the member for Lanark—Frontenac—Lennox and Addington did not want to recognize Quebec's status as a nation, refusing to recognize, thereby, the evidence that Quebec truly is a nation.

Since the House of Commons continues, even today, to deny this obvious reality, that Quebec is a nation, and continues to deny the aspirations of the Quebec people, the Bloc Québécois finds that any constitutional discussions or amendments at this stage are quite futile. The only constitutional amendment we would be prepared to consider would be one seeking to recognize Quebec as a sovereign nation that could eventually be associated, politically and economically, with Canada.

Mr. Speaker, I must admit that I rise to speak to this motion with mixed feelings. On one hand, I have some sympathy for the member for Lanark—Frontenac—Lennox and Addington in his attempt to deal with the issues that arise from those sections in the BNA Act. On the other hand, as we have heard from both the Liberals and the Bloc, I feel that this is not the way to go about making constitutional amendments. I have to indicate that my party supports that sentiment and we will not be supporting the motion.

I want to wear my lawyer's hat for a moment. I have some concerns about whether this motion, if we proceeded with it, is within the exclusive power of this House. We may need to call on a number of constitutional experts to determine that for us. It is not something we can do in this House.

The reality is that even though we would be taking some power away from the federal government were we to proceed with this motion and amend the Constitution accordingly, there is still an issue on the role the provincial governments would play regarding this motion and its effect.

We could say that we are giving up a power, that we are restricting our ability to override provincial legislation. We cannot rule out that there may be some provincial government which, in looking down the road, may say, “At some point maybe we would like the federal government to continue to do that”.

I know that is stretching it a bit. It is the reality in terms of what we may end up with at some point. A provincial government may say, “Wait a minute. We do not want the federal government touching any part of the Constitution, including this part, until we approve of it also, or at least approve of it in an amendment formula that is acceptable to the country as a whole, including the provincial government”.

The other point we have to make when speaking to this type of an approach is to recognize that this part of the Constitution has been used sparingly over the years. The reservation section which we are addressing this evening was last used in 1961. It has been nearly 45 years since it was last used. With regard to the disallowance, 1943 was the last time it was used by the federal government.

In addition, the consensus among constitutional experts would be that at this point in time as this has fallen into disuse and there have been so many changes in our constitutional framework, including the passage of the laws in 1982, and the advance of the role of the Charter of Rights and Freedoms, and the role of the courts to make decisions, all of those advances have rendered these sections no longer constitutionally valid. The end result of this motion if it were to come to fruition would be for naught because these sections no longer apply. They no longer have constitutional validity.

If the federal government attempted to use these sections, I believe our courts, our Supreme Court in particular at this point, would strike the sections down as no longer being valid.

Let me make the additional point that because of what happened in the run up to 1982, the resulting and ongoing concerns by the province of Quebec over amending formulas and changing the BNA Act, and a number of those concerns being shared by other provincial governments, we should not be going anywhere near making amendments, even those that appear, at least on the surface, to be taking power away from the federal government to proect the provinces, even if that is the end result, and I am not entirely convinced it is, we should not be doing this without full involvement and consultation with and the authority of the provincial governments.

It seems to me that if we have learned anything from the 1982 experience it is that we should never go down that road again of making those kinds of decisions where we exclude any significant part of our provincial counterparts.

Based on all those points, it is the position of the NDP that we will not be supporting the motion, that it is simply just not the way to go about constitutional amendment in this country and that it has some very dangerous consequences should we do so.

Mr. Speaker, it is my pleasure today to rise to support the motion proposed by the member for Lanark—Frontenac—Lennox and Addington to abolish the powers of disallowance and reservation.

I have to say that I am quite surprised by the reaction of the other parties. I thought this was something to which they would have responded very positively.

I first want to address the whole issue. My colleague who just spoke and for whom I have a great deal of respect, said that this is not the way to go about amending the Constitution. That was reflected in the Liberal member's comments as well. I find that very surprising because there are really three options.

One option is to amend it in a macro way, to do what was done in 1982, to do what was tried under the Mulroney government with the Meech Lake and Charlottetown accords. We could put together an omnibus constitutional package and hope the entire country would accept most of it and therefore vote for it, or most of Parliament would vote for it. However, we have seen particularly in reaction to the Charlottetown accord that Canadians are very uncomfortable with that macro way of trying to make constitutional amendments. They would rather deal with things in a more detailed specific way and not have to vote yea or nay on an entire package, some of which they may like and some of which they may not like.

The second alternative is to not do anything. The former prime minister had this reaction. He felt that Canadians were tired of the Constitution so he did not do anything. What was the reaction in not doing anything? The reaction was that unfortunately we almost sleepwalked through a situation in 1995 where the country could possibly have broken up.

Those are the two options used in recent history, either doing things in a massive, macro, omnibus package, take it or leave it, to parliamentarians and Canadians, or doing nothing.

There is a third route proposed by my colleague. His proposal says that the Constitution is a living document and perhaps we could amend and improve it as sensible citizens and parliamentarians over time. This shows the maturity of a democracy.

I would encourage members who spoke against the motion to think very seriously about how it is they want us to amend the Constitution. I do not think the best way is to do it in a macro way or to do nothing. The best way is what is proposed in this motion, which is doing something very sensible, in a small piecemeal basis to improve the document that governs us overall.

I want to also address the whole issue, and I forget which colleague mentioned it, about there being no observable consensus in support of it. That is simply not true. The member has provided documents to us and I am sure he would be happy to provide them to all parliamentarians. There is a wide consensus in support of the motion. I would like to quote from some of the distinguished Canadians of all political persuasions who supported this in the past. John Diefenbaker in 1960 said:

My feeling was, and I think it is soundly based on Canadian constitutional development, that the federal government...ought not to exercise this power against the legislature of any province. The legislatures are elected by the people of the province and whatever one's views may be with regard to the legislation [which some MPs are asking me to disallow], to do otherwise would be to place the federal government in the position of a judge over the legislation passed within the competence of the legislature, something that no longer is considered a proper and reasonable attitude for the federal government to take.

I would like to quote from another prime minister. Prime Minister Pierre Trudeau wrote in his famous work Federalism and the French Canadians :

A Bill of Rights could be incorporated into the constitution, to limit the powers that legal authorities have over human rights in Canada. In addition to protecting traditional political and social rights, such a bill would specifically put the French and English languages on an equal basis before the law. The protection of basic rights having thus been ensured, there would be no danger in reducing the central government's predominance in certain areas (for example, by abolishing the right of reservation and disallowance); at the same time, this would have the advantage of getting rid of some of the constitution's imperial phraseology.

It was supported in 1970 by Noel Lyon and Ronald Atkey. It was supported by former NDP premier Roy Romanow in 1975:

It can be safely predicted that if the federal power of disallowance were to be reactivated, there would be a strong reaction from the provinces.

The Trudeau government again in 1978 supported it. The Pepin-Robarts report of 1979 stated:

We would eliminate the two methods by which provincial legislation can be blocked by Ottawa. [B]oth methods have gradually faded from use and now are considered dormant. To eliminate these two powers would not only recognize a situation which exists, but would recognize the ability and right of the provincial governments to act as responsibly as non-subordinate bodies.

I will quote from a 1980 document from the Liberal Party of Quebec, which was signed by Claude Ryan, a very distinguished Quebecker and Canadian, I would say:

Such anachronisms and infringements of the fundamental principles of federalism must be completely and unconditionally set aside. These powers, conceived at a time when there was a concern for possible immature legislative actions by the provinces, have become obsolete and no longer have any place in a pluralist country with a constitutionally entrenched Bill of Rights.

That was from “A New Canadian Federation” of 1980.

I will quote the Supreme Court of Canada from 1981:

[R]eservation and disallowance of provincial legislation, although in law still open, have, to all intents and purposes, fallen into disuse.

This was included in the Victoria charter and in the Charlottetown accord and has enjoyed support from distinguished Canadians from all political persuasions. I think members of all parties should take a serious look at this motion.

I think what has happened here, frankly, is that perhaps members have not quite fully understood the entire motion. Therefore they should take a second look at it. I would encourage them to do so.

I would perhaps, as a way of concluding, talk about exactly why it is that my colleague is bringing this forward. There are two arguments that are used in opposition to this as well. These powers are not really being used any more, so therefore why should we worry? Why is there a need for action?

If it is truly the case that these powers are not being used anymore, then the other question presents itself: why is there any opposition to removing them if these powers have fallen into disuse and they will not be used again? If the federal government has no intention of using them, then why would any federal political party object to them being removed? It would actually just be a matter of cleaning up the Constitution.

Then the second question is asked. If these powers are just dormant, as my colleague said--it is either the fact that they have fallen into disuse and will never be used or the fact that they are dormant and they may be used--then that is a more dangerous thing. The federal government could in fact step in and use these sections under the Constitution to disallow provincial legislation. I think he spoke very well in saying that we are a mature democracy. We have provinces in this country that are as mature as any democracy across the globe and they need to be respected as such. For a federal government to step in and disallow provincial statutes is unacceptable today.

I would counsel colleagues on all sides of the House to look at the issue seriously. If these powers have fallen into disuse and are no longer necessary, then let us clean up the Constitution and remove them, but if in fact a federal political party actually believes that in some cases they may be used that party should stand up and say so. In our view, the Conservative Party's view, these powers should not be used in a mature democracy and therefore we strongly recommend and urge all members on all sides of the House to remove them and support this motion.